Self Reporting to the SFO: Still on the menu – but advice will be critical

The removal of the old ‘Self-Report’ Guidance from the SFO’s website has caused general consternation among corporates and in the compliance community.

We discussed this, amongst many other matters, with the Director of the SFO last week.

Background

David Green QC in practice at the Bar was a heavyweight prosecutor. At the helm of Revenue & Customs Prosecution Office it fell to him to steer the prosecution authority out of very troubled waters necessitating the design and implemention of a coherent prosecutorial policy. He succeeded.

It is not surprising that there is a change in tone given the very different background of the current Director as compared to his predecessor Richard Alderman.

The old SFO self-report guidance with its emphasis on non-criminal outcomes was a refinement of those underlying guiding principles. Those underlying principles (which are linked to by the SFO) are not affected by the removal of the old SFO guidance.

However, the removal of the old guidance is a significant alteration of tone.

It is clear from our discussions with the Director that going forward the approach of the SFO will be nuanced.

As the new/old guidance makes clear ‘Self Report’ is a significant feature when determining ultimate outcome in terms of criminal, civil or no proceedings. Added to this, when DPA’s become available self-report will clearly be a significant factor (as the new/old guidance made/makes clear).

The upshot is that Self–Report is a significant factor to be weighed in the balance by the SFO when determining whether to prosecute or not.

A Self-Report is not the only factor.

Nor is it the determining factor.

But, it is a highly significant factor.

Any Self-Report will be looked at very carefully.

The focus of the Director and his team, which now includes the vast experience of Judge Rivlin QC, will be to the detail of the Report and the corresponding investigation relating to it.

The content of the investigation report is obviously of great importance. Given the professional experience of those doing the review the importance of the investigation and the resulting report has been emphasised to us.

We asked the Director whether there were plans to change the procedure surrounding a Self-Report to the SFO. We were told that the current system worked well and that there were no plans to change.

We will offer some tips on the process of Self Reporting in future posts on thebriberyact.com.

The issue of Self-Report was one of several topics discussed with the new Director of the SFO. It fits within a wider SFO strategy some of which was detailed by the Director.

Opinion

Following our meeting it is clear that the SFO do not wish to dissuade responsible companies from Self-Reporting to the SFO.

Whilst the perceived ‘default’ position of a civil settlement following a Self-Report has been removed that is not to say, nor is it meant to say, that in appropriate cases a civil settlement will not be reached.

It all depends.

In our opinion, in appropriate circumstances and done right there can still be significant potential advantages in Self-Reporting to the SFO for ethical corporates.